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A Review of Today's Important House Hearing on Warrantless Wiretapping and the FISA Amendments Act

This morning, the House Judiciary Committee held an important hearing on the FISA Amendments Act (FAA) and the scope of the NSA’s warrantless wiretapping program. The FAA, which gutted privacy protections governing the interception international phone calls and e-mail to and from the United States, is set to expire at the end of the year, and Attorney General Eric Holder says it is his “top priority” to see it renewed.

President Obama had promised during his campaign to demand civil liberties protections and privacy safeguards when the FAA came up for renewal, yet his administration is now demanding Congress to renew it with no changes, despite the fact that the FAA allows for dragnet surveillance of Americans’ international communications.

A detailed explanation of the law’s constitutional deficits can be read here, but as ACLU’s deputy director Jameel Jaffer explained to the committee, the law is written so broadly that a phone call to someone overseas discussing general foreign affairs could be listened in on. Even putting aside the massive constitutional violations perpetrated by the NSA and its warrantless wiretapping program before the FAA was passed in 2008, the NSA has still unlawfully collected “millions” of Americans’ domestic communications since 2009, according to reporting by the New York Times and documents the ACLU received via the Freedom of Information Act (FOIA).

Rep. Trey Gowdy (R-SC) remarked to Jaffer that no court has ruled the FAA unconstitutional. But he conveniently left out the fact that the Obama Justice Department (DOJ) has resisted every effort to have courts hear any evidence on the matter. DOJ is now arguing before the Supreme Court that the ACLU’s lawsuit over the FAA should be dismissed before trial on “standing” grounds, despite lower courts ruling the case should move forward on the merits. In addition, in EFF’s own case challenging the dragnet portion of the NSA warrantless wiretapping program, the government has invoked the “state secrets” privilege, arguing that even if the allegations of constitutional violations are true, the case should be dismissed because it could hurt “national security.” All this despite the fact that federal courts have ruled the NSA’s warrantless wiretapping program unconstitutional in other cases.

EPIC Privacy executive director Marc Rotenberg, another witness at the hearing, implored the committee to install new transparency requirements so Americans can understand exactly how many people are being spied on. This could be done easily and anonymously without jeopardizing any investigation, he said, and can be modeled on the transparency requirements already in place for domestic wiretaps.

Kenneth L. Wainstein, who worked on creation of FISA during his tenure at the Justice Department during the Bush administration, countered that there is already “oversight” built into FISA, but there is scant proof of that in practice. The administration has kept its interpretation of the FAA secret, has refused to declassify any of the FISA opinions (despite previously promising to), and won’t release numbers on how many Americans have been affected, as multiple Senators have demanded. All of this is particularly troubling since the FISA court received over 1,700 applications for blanket wiretaps last year and none were rejected.

Wainstein’s argument about how supposedly “vital” warrantless wiretapping is to national security also flies in the face of the official Inspector General report, which casted doubts on its usefulness.

The hearing was a step in the right direction, however, and it was encouraging to see so many members of Congress question the dangerous scope of the bill. Rep. Scott said, "An untold amount of NSA data collection is affecting citizens in America," Rep. Conyers demanded an official from the FISA courts testify on the matter, and others questioned the warrantless surveillance of American citizens. Given the massive constitutional implications of renewing FISA, and the ample evidence it is being abused, Congress has a duty to follow through and dramatically reform the bill or refuse to renew it entirely.